Furtado v Oceana Yacht Brokers Pty Ltd
[2011] QCATA 11
•27 January 2011
| CITATION: | Furtado v Oceana Yacht Brokers Pty Ltd [2011] QCATA 11 |
| PARTIES: | Mr Graham Furtado & Mr Brian Pozzey (Applicant/Appellant) |
| v | |
| Oceana Yacht Brokers Pty Ltd (Respondent) |
APPLICATION NUMBER: APL214-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 27 January 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. The application for leave to appeal is allowed.
2.Set aside the orders made by the QCAT member on 12 August 2010 and order, instead, that the respondent’s application to QCAT in Minor Civil Dispute matter no. Wynnum 17/10 be dismissed.
| CATCHWORDS : | Minor civil dispute – recovery or brokerage fees for the sale of a yacht; where exclusive agency gave the respondent and entitlement to brokerage fees if sold with the exclusive agency period; where evidence inconclusive as to when the yacht was sold; onus on the respondent broker to establish when vessel sold; whether onus discharged. Queensland Civil and Administrative Tribunal Act2009 section 142(3) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 12 August 2010 the Tribunal made an order that the applicants pay to the respondent the sum of $7,500.00 brokerage fees pursuant to an Authority to Sell in respect of the sale of the vessel “Overdraft”, then owned by the applicants.
The applicants now seek leave to appeal and appeal that decision. Leave is necessary.[1] The application raises a number of grounds of appeal but on a consideration of the evidence before the learned Member there is only one fundamental issue which, it seems to me, is of relevance even though not directly raised in the application or in submissions. That is, whether the vessel was sold by the applicants within the exclusive agency period which item gave rise to the respondent’s entitlement to the brokerage fees.
Background
[1] QCAT Act section 142(3).
The applicants were the owners of a 41 foot yacht which sailed under the name “Overdraft”. The applicants had been trying to sell the vessel for some time and decided to list it for sale with the respondent, Oceana Yacht Brokers (“Oceana”). Oceana’s representative, Mr Davidson, met with the applicants on or about 21 September 2009 to have the applicants sign an Authority to Sell which is a document in writing authorising Oceana to sell the vessel as agent for the applicants.
The Authority to Sell was before the learned Member during the minor civil dispute hearing. It identifies the vessel as having the name “Overdraft”, it’s description being a “Nichol 41,” and attached to the reference schedule were printed terms and conditions.
The applicants signed the Authority to Sell in the presence of a witness, who appears to be Mr Davidson. The document is dated 21 September 2009. The learned Member found that the Authority to Sell, despite having no date in item A, commenced on 21 September 2009. This is consistent with the evidence of the applicants and is not contested by the respondent. This finding was clearly open on the evidence.
By the Authority to Sell, the applicants gave to Oceana an exclusive agency for a period of 90 days from 21 September 2009. By agreeing to the exclusive agency, clause 6.3 became operative and it provided:-
1. If “Exclusive Agency” in item F of the Reference Schedule is marked, this clause 6.3 applies. The Seller appoints the Broker as its agent to offer the Vessel for sale either directly or through other brokers as the Broker may appoint for the period referred to in Item G of the Reference Schedule from the date of this Agreement referred to in Item A of the Reference Schedule.
The Seller is liable to pay the Broker (the Brokerage Fees) if:-
(a) A Sale is completed and a buyer in the Sale is found by the Seller or is introduced to the Seller by the Broker or other brokers appointed by the Broker or the Seller; or …
After the term of the Exclusive Agency has expired, the agency will continue as an open agency until determined in accordance with clause F.”
If the exclusive agency commenced on 21 September 2009, it expired after 90 days on 19 December 2009. This fact was conceded by Mr Davidson during the hearing.
The vessel was sold by Mr Furtado on behalf of both the applicant owners to Soenke Wiess and Ash Richardson for $46,000.00 with a deposit being paid on 21 December 2009 and a final payment on 20 April 2010.
Therefore as Oceana was not the effective cause of the sale, the only basis upon which it could recover the commission pursuant to clause 6.3(a) was if the applicants/sellers entered into a contract to sell the vessel on or before 19 December 2009.
At the conclusion of the hearing the learned Member found that the vessel had been sold within the exclusive agency period and therefore made the order that the applicants pay to Oceana the brokerage fee of $7,500.00 in accordance with the exclusive agency provisions in the Authority to Sell.
When was the sale contract made
The date of the sale of the vessel is of importance because it is the establishment of that date which enlivens Oceana’s entitlement to the brokerage fees under the exclusive agency agreement.
Despite its importance the evidence on this point is vague.
It was addressed during the course of the hearing when the learned Member asked Mr Davidson when the vessel was sold, to which he replied, that the date of the contract was the date when the purchaser paid the deposit.[2] Similarly, the question was asked of Mr Furtado, one of the owners, but he did not specifically respond. He made reference to the purchasers being interested in the yacht in December 2007 but he did not specifically say when the oral contract for sale was made. He did however say “the sale was made after the exclusive agreement”[3].
[2] Transcript page 12.
[3] Transcript page 14.
The learned Member found that, by inference:-
“The oral contract may well have been entered into before or shortly before 21 December, because he paid the deposit on 21 December. He presumably would have had to inspect the boat and so on…”[4]
[4] Transcript page 12.
Some reliance was also placed by the learned Member on an email between Mr Wise (one of the purchasers) and Maritime Solutions, a company undertaking repair work on the vessel, in support of the contention that a contract was made before 21 December 2009. Although this evidence could lead to an inference that the new purchasers had access to or acquired the vessel, it is not conclusive of the agreement having been made at that time.
The learned Member reaffirmed his finding that the oral contract occurred before 21 December 2009[5] but he does not identify with any precision a date upon which the oral contract was made. He simply infers that because the deposit was paid on 21 December 2009, there must have been negotiations occurring before that date resulting in a binding agreement meaning it must have been on or before 19 December 2009.
[5] Transcript page 14.
In contrast to the inference that negotiations took place resulting in a contract within the 90 day period, there is direct evidence in support of a date upon which it could be concluded that the contract was made and that is when the deposit was paid. This is also consistent with the concession made by Mr Davidson.[6] Of course, Mr Davidson’s evidence is not conclusive of the legal consequence of known facts about when the parties can be said to be legally bound, but it is certainly factual evidence that can be of assistance in making such a determination.
[6] Transcript page 12.
The concern with the learned Member’s findings as to the date of the contract for the sale of a vessel is that it lacks any substantive evidence to support the conclusion reached. There is no finding as to when negotiations started or concluded, there is no evidence about delivery up of possession of the yacht for repair works, nor any evidence about the terms of the agreement about the work being carried out. This is in contrast to the quite specific and direct evidence that the deposit was paid on 21 December 2009. The reasonable and logical inference one can draw from this fact is that this was the date the contract was made and the parties were legally bound.
It may have been that an agreement could have been reached earlier and a term of the agreement could have been that the deposit would be paid on or before a certain date but there is simply no evidence to support such a contention. The evidence as to the date of the contract is unsatisfactory and in those circumstances, the best evidence is the date the deposit was paid.
In civil claims, the party making the claim for money owed carries the onus of proof to establish, on the balance of probabilities, all necessary facts giving rise to an obligation on the part of the other party to pay. Here that onus of proof is on Oceana to establish on the balance of probabilities that a sale was effected within the exclusive agency period. Even though the Tribunal is not bound by the rules of evidence, this principle is still applicable. In the face of two pieces of direct evidence firstly, Mr Davidson’s evidence that the date of the contract was when the deposit was paid and secondly Mr Furtado’s evidence that “the sale was made after the exclusive agreement”[7], the conclusion is that Oceana has failed to discharge that onus.
[7] Transcript page 14.
The civil standard is not applied as a mathematical or scientific exercise, but as a reasonable search for the truth in the circumstances of each particular case[8]. As Dixon J (as his Honour then was) explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 2, ‘…when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found … reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved’.
[8] TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267.
As Oceana has not discharged the onus of proof to establish any facts to persuade the Tribunal that the contract was made within the exclusive agent period, the learned Member erred in concluding that it was entered into “before or shortly before” the expiration of exclusive agency period. As a further example, it may well have been that the contract could have been entered into on 20 December 2009 which is still outside the exclusive agency period.
Conclusion
For leave to appeal to be granted, the applicant must demonstrate and I must determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties[9]. In fact, one could take the view here that there does not seem to be any real contest in the evidence as to when the contract was made.
[9] Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?[10] Is there a reasonable prospect that the applicant will obtain substantive relief?[11] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[12] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[13]
[10] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[11] Cachia v Grech [2009] NSWCA 232 at [13].
[12] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[13] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The consequence of these findings is that an error in the reasoning of the learned Member is demonstrated and therefore the applicants should have leave to appeal.
As indicated earlier, as the sale contract was made on 21 December 2009 it falls outside the exclusive agency period and Oceana had no entitlement to commission. From 19 December 2009 the listing became an open listing and for Oceana to be entitled to a brokerage fee it would have to establish that it was the effective cause of the sale of the vessel[14]. In fact, it was never contended by Oceana that it was the effective cause of the sale.
[14] LJ Hooker Ltd v WJ Adams Estates Pty Ltd [1977] 138 CLR 52.
The applicants have raised a number of other grounds of appeal. Having found that the learned Adjudicator erred in the finding as to the time when the contract for sale of the vessel was entered into, it is unnecessary to address those other grounds of appeal relied upon. In the circumstances the appeal will be allowed and the Tribunal’s decision of 12 August 2010 is set aside and in lieu thereof a decision that the minor civil dispute be dismissed.
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